Mistrial Declared in Etan Patz Child Murder Case - Legal Commentary by Boston Attorney Hank Brennan

AddThis Social Bookmark Button

The Etan Patz murder trial recently ended after 18 days of deliberation in a stunning mistrial that seemed an impossibility as the defendant confessed and provided sick, demented, details of the child's last moments of life.

Inside the jury room, where seemingly normal people jockey for power and control, facts often get lost in the play for dominance

Boston legal scholar Attorney Hank Brennan, former Prosecutor for Suffolk and Essex counties, has dealt with his share of juries from voir dire to verdict.As a former prosecutor, Brennan agreed to provide a legal viewpoint from inside the jury room as to some causes of mistrial.

Q. Obviously, the simplest question, how is this possible? Do you think it is the way in which evidence is perceived? The length of time in between crime and trial, how about admissible confessions?

A. There are many causes for a mistrial. Some reasons for a mistrial are based on a fundamental problem with the jury or deliberation process that infects the jury.

For example, if a juror knew a witness in the case and either failed to disclose their knowledge or recognized a witness after the case already began this potential bias could cause a mistrial.

Another reason for a mistrial could be that an outside source infected the jury during deliberation. This type of mistrial would include jurors learning of inadmissible evidence or tampering by a third party.  

The most common cause of a mistrial is the situation that occurred in the Patz case. Although the word mistrial standing alone has a dubious connotation, a mistrial can be based on the simple fact that all jurors could not agree on guilt or innocence. This is not an uncommon phenomenon.

This type of mistrial does not invoke double jeopardy, thus, the prosecution if free to retry the case if they choose to do so.

Sometimes jurors have committed themselves to guilt or innocence before trial. Other times, personal conflicts between jurors can cause one or many jurors refuse to compromise and remain adverse to each other based on personal issues as opposed to the facts of the case. Sometimes reasonable people simply don't agree.  

Q. In this case a single holdout indicated they did not feel there was enough evidence to convict how did eleven people find enough and one not?

A. The lone hold-out juror provided an interview with the New York Post today.  His commentary and opinion was thoughtful, comprehensive, and seemingly sincere. It is not often that a juror will provide such a candid interview so this jurors thoughts actually helps both sides in the event of a retrial.

The defense will better identify what issues a juror may struggle with and the prosecution can isolate the concerning issues and attempt to improve their evidence on those issues.

The division of jurors has no relevance in a re-trial. It is a trap for an inexperienced lawyer to feel comforted by the jury division in their favor or discouraged by a jury division against them. The next jury is a clean slate and there no value to attaching emotion to the juror breakdown.

Q. What are the next options for the prosecutor?

A. Putting aside emotion, the prosecution will appreciate that they have a viable case if virtually every juror sought to commit. In assessing resources available for a re-trial, likelihood of success, relevance of plea bargaining, and whether putting the victim's family through another trial are all issues that have some relevance to the jury break down.

I expect given the circumstances the prosecution will not hesitate to retry the case. Given the extent of the defendant's alleged mental health illness and his age, I do not think a plea bargain to a lower level of murder is beyond reason.

 

Haute Tease

  • Decorated Virginia State Police Trooper Murdered, Two Others Injured, in Random Shooting

    AddThis Social Bookmark Button

    Trooper Chad P. Dermyer, who one year ago was receiving an accommodation from his superiors, was shot and killed at the Richmond Greyhound Station by an ex-con who opened fire, in the crowded terminal, after a brief verbal encounter.  

     
  • Fox Searchlight Pictures Acquires Paolo Sorrentino’s “Youth”

    AddThis Social Bookmark Button

    Fox Searchlight Pictures Presidents Stephen Gilula and Nancy Utley announced today that the company has acquired North American rights to Youth, starring Oscar winner Michael Caine, Oscar winner Rachel Weisz, Oscar winner Jane Fonda, Academy Award nominee Harvey Keitel and Paul Dano.   

  • September Hong Kong Jewellery and Gem Fair 2013 Gets Bigger and Better

    AddThis Social Bookmark Button

    A bigger and even better September Hong Kong Jewellery and Gem Fair (September Fair awaits exhibitors this year, fair organiser UBM Asia announced.  With the Fair occupying 135,000 square metres of exhibition space, it is the largest edition ever.

     
  • The American Film Institute Unveils Full Slate of AFI Docs 2015 Films

    AddThis Social Bookmark Button

    The American Film Institute (AFI) announced AFI DOCS opens with Magnolia Pictures' BEST OF ENEMIES from director Robert Gordon and Academy Award®-winning director Morgan Neville and concludes with the HBO documentary film MAVIS! from AFI DOCS alumna Jessica Edwards.  

  • National Geographic Channel Announces Spring Line-up

    AddThis Social Bookmark Button

    The National Geographic Channel, which recently celebrated its 15th Anniversary, has announced its spring 2016 lineup which includes specials on extremism in Fighting ISIS and poaching in Battle for Virunga and the critically acclaimed documentary He Named Me Malala.

Crime

  • East Liverpool Heroin Overdose Victims Survive

    AddThis Social Bookmark Button

    James Lee Acord and Rhonda Pasek, the couple whose graphic overdose picture taken by responding officers has gone viral, survived the incident and after hospitalization were reprimanded to the local county jail until court appearances.

     
  • Terrorist Attorney Lynne Stewart Receives Holiday Pardon

    AddThis Social Bookmark Button

    Lynne Stewart, the famed New York Civil Rights attorney arrested for smuggling messages for a blind Egyptian sheik serving a life sentence for plotting to blow up New York City landmarks, has received a compassionate release.

     
  • Five Dead in Washington State Rampage; Third Mass Shooting This Week, Second in 24 Hours

    AddThis Social Bookmark Button

    The last 24 hours have been particularly violent as two separate Mass shootings, in Hesston, Kansas and Belfair, Washington became the second and third of this bloody February leap year with a Kalamazoo, Michigan Uber driver being the first.

     
  • Four Dead, Including Two Special Education Students, in San Bernardino Elementary School Shooting

    AddThis Social Bookmark Button

    Two special education first grade students, their teacher and her estranged husband died in the murder-suicide shooting at North Park Elementary school, in San Bernardino California, stemming from what authorities are calling an escalating domestic violence separation.

     
  • Theater Shooter, James Holmes, Formally Sentenced

    AddThis Social Bookmark Button

    Theater Shooter, James Holmes who walked into the Aurora Cinemark 16, in full tactical gear, tossed a smoke bomb designed to get his targets to stand, and systematically slaughtered 12 moviegoers and wounded another 70.

Theatre, Music, Books

  • BACKSTAGE PAST: The High Times of Legendary Rock Promoter Barry Fey

    AddThis Social Bookmark Button

    BACKSTAGE PAST, the auto bio road trip from legendary promoter Barry Fey, reveals the dressing room romps of Rock n' Roll royalty from a career that spans forty years of music madness.

     
  • Broadway's Best: Celebrating the Music of Ron Abel

    AddThis Social Bookmark Button

    Birdland, the legendary Manhattan Jazz Club, played host for two nights only to celebrate, one of Broadway's best and Hollywood's hottest talents, composer and musical genius Ron Abel.

     
  • The Sword & Scabbard: Thieves and Thugs and the Bloody Massacre in Boston - A Page Turning Thriller

    AddThis Social Bookmark Button

    The Sword & Scabbard, from Allen Woods, looks as if it would appeal to Boston’s very tony elite, not until pushing through the labyrinth of technology interruptions does one realizes Woods has created a page turning account of corruption, violence, and a bloody re-revolution massacre.

     
  • Blue Man Group Review - Fresh, Fun, Loud and Messy

    AddThis Social Bookmark Button

    I had seen the famed Blue Man Group Las Vegas show before albeit more than a decade ago. Even so, I recently proceeded to secure tickets to see what has since become a Vegas entertainment staple. I wondered how, or if, this show had evolved so it would seem fresh and new the second time around.

     
  • The Art Of Discovery - Photographs By WireImage Co-Founder Jeff Vespa

    AddThis Social Bookmark Button

    LOS ANGELES, Ca. USA -  Jeff Vespa, co-founder of the largest entertainment photo agency in the world, WireImage and founder of Verge, will release his first monograph, The Art of Discovery, this October on Rizzoli International Publications.